New York State Court of Claims

New York State Court of Claims

HAMMER v. THE STATE OF NEW YORK, #2008-044-016, Claim No. 111001


State found 100% liable for injuries incurred when severely visually-impaired inmate fell in pothole in recreation yard at facility for disabled inmates. Credible testimony showed that State had actual prior notice of the dangerous condition. Claimant awarded $1,200.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 28, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at the time he incurred his injuries and who is proceeding pro se, seeks damages from defendant State of New York (defendant) for injuries sustained when he fell leaving a bathroom in the recreational yard at Woodbourne Correctional Facility (Woodbourne). Trial of this claim was held on September 9, 2008 in the Binghamton District.

Claimant testified that at approximately 1:25 p.m. on April 16, 2005, he had entered the bathroom in a recreational yard at Woodbourne to get some water. Upon exiting the bathroom, he stepped into a hole in front of the bathroom door and fell on his face. Claimant is legally blind in his left eye, and severely vision-impaired in his right eye.

Claimant said that Woodbourne is a correctional facility for inmates with physical handicaps. He stated he had repeatedly complained about “potholes”[1] to Tim Terbush, the Supervisor of the Inmate Grievance Program at Woodbourne prior to his fall. Claimant said he tried to act as an advocate for the handicapped people at the facility. He also stated that other inmates had fallen in this hole before he did.

Claimant acknowledged that he was given certain accommodations for his disability at the facility, including preferred seating in the classroom, books on tape, a magnifying glass, and a cassette player. He was given a “mobility assistant” for a short time when he first entered the facility, whose duties included telling him when stairs were imminent, and warning him of potholes. However, claimant said, the assistant did not fulfill these duties.

Exhibits submitted into evidence at trial included a memorandum from the facility’s maintenance supervisor to Terbush indicating that an inspection of the site where claimant fell, conducted three days after the fall, showed that the pavement at that location was uneven (Defendant’s Exhibit E). A maintenance work order request prepared in response to that inspection contains the notation “[p]lease fill in sink hole in front of inmate bathroom,” as well as “fill-in [sic] depression to eliminate trip hazzard [sic]” (id.).

Claimant testified that he chipped one of his front top teeth, and had abrasions on his face, left arm and shoulder, and right hand. He submitted a picture of his injuries into evidence (Claimant’s Exhibit 6), and copies of his medical records pertaining to the incident were also submitted (Defendant’s Exhibit D). Claimant said that the facility’s dentist “shaved” his tooth, and told him that it would have to be done repeatedly, because it would keep chipping. The medical records indicate that his abrasions were treated by the facility’s medical personnel, and that he was advised to take Tylenol. The records do not indicate that any further treatment was necessary for these injuries. Pictures of the recreational yard were also submitted, which showed the area where he fell (Defendant’s Exhibits B and C). However, those pictures were taken after the repairs were made.

Ross Turner, Fire and Safety Officer at Woodbourne, testified on defendant’s behalf. He acknowledged that the pavement where claimant fell had been patched shortly after claimant’s fall, but said that he did not see the depth of the hole prior to its repair. Nicholas Chalk, a supervising corrections counselor at Woodbourne also testified. He confirmed claimant’s testimony that Woodbourne is a unique facility due to the concentration of disabled inmates. He further stated that claimant was assessed when he entered the facility, and “was found capable of navigating his way throughout the prison.”

It is by now well established that the State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997 [1983]), and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, supra; Basso v Miller, 40 NY2d 233, 241 [1976]). However, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [1993]).

To prevail on his claim, claimant must prove, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [1996], affd 88 NY2d 955 [1996]). In order to constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon v American Museum of Natural History, supra at 837).

Claimant has proven by a preponderance of the credible evidence that a dangerous condition existed, based on his uncontroverted, credible testimony that the pothole existed, particularly when combined with the repair records. Claimant’s testimony that he had previously advised the Inmate Grievance Program Supervisor about the condition of the pavement was sufficient to establish that defendant had notice of the condition prior to claimant’s accident. Because of Woodbourne’s status as a facility for disabled inmates such as claimant, it was reasonably foreseeable that an inmate might be injured when encountering such a condition, and defendant had a duty to remedy that condition. Finally, the issue of proximate cause does not appear to be in issue. The Court finds defendant 100% liable for claimant’s injuries, as there was no evidence of comparative negligence.

Claimant’s injuries were minor and of concededly brief duration. Claimant did display the chipped tooth at trial, which had been smoothed down by the facility’s dentist, but which had chipped again. Claimant did not testify that the injury to the tooth caused him any pain, either at the time of the fall or at present. Based on the foregoing, the Court finds that an award of $1,200 is appropriate recompense for claimant’s injuries. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Let judgment be entered accordingly.

October 28, 2008
Binghamton, New York

Judge of the Court of Claims

[1]. All quotes herein are taken from the Court’s recording of the proceedings, unless otherwise indicated.